On Monday, D.C. Circuit Judge Ketanji Brown Jackson will sit before a panel of 22 Senators for what may be the most important job interview of her life.
When President Joe Biden nominated Jackson to the Supreme Court on Feb. 25, the response from GOP Senators was generally muted. Democrats narrowly control the Senate, and there’s little Republicans can do to block her confirmation. She also won’t swing the ideological makeup of the court, given she’s expected to fill retiring Justice Stephen Breyer’s role in the liberal minority. Add in the fact that Russia’s invasion of Ukraine has dominated the news in recent weeks, and Jackson’s confirmation process may be more straightforward than the bitter Supreme Court battles of recent years.
On March 21, Jackson is set to begin four days of public hearings before the Senate Judiciary Committee. The committee’s top ranking Republican, Senator Chuck Grassley of Iowa, told Jackson that he plans to keep the process professional and collegial, a source familiar with the meeting told TIME.
But that doesn’t mean she won’t face sharp questioning from GOP committee members about different elements of her record. “The win for the Republicans is this: it’s 100% partisan vote with no Republican votes to confirm,” says a former GOP Senate aide, granted anonymity to speak candidly about the process. “They don’t personally have to attack her, but they don’t have to help her.”
Several Republican attack lines have emerged in recent weeks. Jackson is expected to be asked about her work from 2005 to 2007 as a federal public defender, and Republicans have previewed criticism of her being “soft on crime.” She will likely be probed on her rulings against the Trump Administration during her time as a D.C. District Court judge, and questioned on whether politics inform her judicial philosophy.
Here’s a look at some of the questions Jackson will face in her confirmation hearings.
Her record on criminal justice
If confirmed, Jackson will be the first Supreme Court Justice since Thurgood Marshall with significant experience representing indigent criminal defendants. She served as a federal public defender in D.C. from 2005 to 2007. From 2010 to 2014, Jackson served as vice chair of the bipartisan U.S. Sentencing Commission, a period during which the commission reassessed the 100-to-1 crack versus powder cocaine sentencing disparity.
Biden praised the diversity of her professional experience in his nomination, and her selection is in line with the White House’s recent trend of nominating federal judges with careers outside of the typical backgrounds of prosecutors or corporate lawyers.
But Jackson’s experience working in the criminal justice system may also be a pressure point Republicans can push on. On Tuesday, McConnell said in a floor speech that the “soft-on-crime brigade is squarely in Judge Jackson’s corner.”
The White House has seemingly been conscious of this line of attack, stressing the multiple law enforcement officers in Jackson’s family and pointing to endorsements by the National Fraternal Order of Police, dozens of top law enforcement officials, the International Association of Chiefs of Police, and 83 Republican and Democratic former attorneys general.
Her time on the Sentencing Commission could also be raised by Sen. Grassley, who has asked that the committee be provided emails and documents Jackson authored while working in federal government. As of Thursday, Grassley’s office says they have still not received the documents that they need from either the National Archives or the Sentencing Commission. “Which is seriously problematic, because President Biden and Chairman Durbin have both pointed to her time on the Sentencing Commission as a critical item on her resume, and we ought to be able to take a look at it,” says Grassley’s Communications Director Taylor Foy.
On Wednesday, Missouri Senator Josh Hawley, a Republican on the Judiciary Committee, previewed his own line of attack against Jackson, tweeting that he sees an “alarming pattern” of Judge Jackson’s “treatment of sex offenders” throughout her legal career. He alleged that in several cases, Jackson issued lighter sentences to child pornography offenders than what the federal guidelines recommended. When asked for comment, White House spokesperson Andrew Bates said in a statement that Hawley’s attack “relies on taking cherry-picked elements of her record out of context – and it buckles under the lightest scrutiny,” and added: “In the overwhelming majority of her cases involving child sex crimes, the sentences Judge Jackson imposed were consistent with or above what the government or U.S. Probation recommended.”
Her work involving Guantanamo Bay detainees
Jackson is expected to be asked about her work representing detainees held in the military prison at Guantanamo Bay.
While working as an assistant federal public defender in Washington, D.C. from 2005 to 2007, Jackson represented detainee Khi Ali Gul in his request for habeas review of his legal classification as an “enemy combatant.” (The case was ultimately consolidated with other habeas petitions and moved to a different district judge.) Jackson listed the case as one of the ten most significant cases of her career in her questionnaire submitted to the Judiciary Committee during her nomination to the D.C. Circuit last year.
In the following years, while working in private practice at the law firm Morrison & Foerster, Jackson worked on several amicus briefs filed on behalf of groups in Supreme Court cases dealing with Guantanamo Bay. One of those cases was 2008’s Boumediene v. Bush, which ruled that detainees in the military prison have rights to challenge their detainment in court.
Both Hawley and Texas Senator John Cornyn, another Republican on the committee, told reporters that they’d like to hear more about her work involving Guantanamo detainees. And a fact sheet about Jackson released by the Republican National Committee described Jackson as having advocated for “terrorists” in a manner that was “zealous” and “beyond just giving them a competent defense.”
Jackson was already questioned about this work during her confirmation hearings for the D.C. Circuit last year. At that time, Jackson told Senators that she was “among the many lawyers who were keenly aware of the threat that the 9-11 attacks had posed to foundational constitutional principles, in addition to the clear danger to the people of the United States.”
Her rulings on the Trump Administration
After her time on the Sentencing Commission, Jackson served as a D.C. District Court judge until 2021, where she weighed in on several controversial cases involving the Trump Administration.
Most prominently, she ruled in 2019 that President Donald Trump could not prevent White House counsel Don McGahn from responding to a legislative subpoena on the grounds of absolute immunity. “Presidents are not kings,” Jackson wrote in the decision. “They do not have subjects bound by loyalty or blood, whose destiny they are entitled to control.”
In 2018, Jackson also sided with a group of federal employee unions who had challenged several of Trump’s executive orders on the grounds that they limited their collective bargaining rights. That ruling was ultimately overturned on appeal.
Jackson was questioned about these decisions during her 2021 confirmation hearings for the D.C. Circuit Court. They will likely come up again, as Senators look to see whether political beliefs inform her approach to judging. She denied those accusations last year.
Her record on reproductive rights
Jackson’s career has rarely touched the topic of abortion. But the few times that it has will almost certainly be brought up at her hearings, particularly given that the Supreme Court is set to rule on the constitutional right to abortion this summer. (If confirmed, Jackson isn’t expected to take the bench until the start of its next term.)
In 2001, while working at the law firm Goodwin Procter, Jackson co-wrote an amicus brief on behalf of reproductive rights groups supporting a law in Massachusetts that created a “buffer zone” surrounding pedestrians and vehicles approaching abortion clinics where abortion opponents could not protest. The law ultimately took effect.
In 2018, while serving as a district judge, Jackson ruled against the Trump Administration’s decision to end federal funding for a teenage pregnancy prevention program without providing a reason, saying the decision was “arbitrary and capricious.” That same year, Jackson ruled in favor of a class action lawsuit that challenged the same termination of the program’s funding.
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